Thursday, February 25, 2016

Perceptions About Adjudication, ADR and Adjudicators

The National Center for State Courts (NCSC) recently published Survey Finds Longstanding Public Concerns About Court Fairness and Inefficiency. 

The results demonstrate some lack of public trust, at least perceived, in the operation of American adjudication systems. The survey was conducted last year by telephone, and is part of an annual effort of the NCSC in conjunction with a "strategic consulting team." The interpretation is that public concerns about inefficiency and unfairness in the courts are longstanding and real. 

The report references "persistent concerns" and a conclusion that "the courts are seen as a last resort rather than a preferred means of resolving disputes.” Despite that conclusion, the report notes that among the three branches of government, trust runs highest in the judicial. With the "approval ratings" we hear on the news regarding the President and Congress perhaps that trust conclusion is less than comforting. The NCSC reports that nonetheless there is a perception that politics has invaded the judicial branch and that it influences the manner in which cases and controversies are decided. 

The NCSC says that three years of research has led it to conclude that the public harbors "persistent concerns about customer service, inefficiency, and bias" which "are undermining the public’s confidence in the courts and leading them to look for alternative means of resolving disputes." That is a fairly critical indictment. 

According to the survey, less than half of respondents believed that "judges in courts make decisions based on an objective review of the facts and law." An almost identical percentage instead believes that judges "make decisions based more on their own beliefs and political pressure. That statistic alone may be the most troubling of the study. 

The study is a somewhat enthusiastic endorsement of alternative dispute resolution (ADR) such as mediation; 55% of respondents agreed mediation and other ADR "are faster, cheaper and more responsive to the needs of the people." Enthusiasm for ADR is not a negative necessarily. ADR generally is a benefit to people, because it can be creative, personal and flexible. People with differences can be more creative in crafting an agreement than a judge or even jury may perhaps be in resolving the same dispute.

The preference for mediation may be in part based on these ADR strengths, which could be the "more responsive to the needs of the people." But some might view it as unfortunate that part of the affinity for ADR comes from it being "faster" and "cheaper." Running an adjudication system, there is conflicting feedback. As many complain that adjudication is too fast as complain that it is too slow. I am not convinced that speed is a critical issue in Florida workers' compensation, where the vast majority of trials are conducted within 180 days of filing. 

At least in workers' compensation, the "cheaper" attributed to ADR may be a product of calculated decisions to minimize costs by foregoing functions like cross-examination. Few proceed to trial without deposing the experts involved (often doctors), and subjecting those conclusions of causation, compensability, and disability to cross-examination. But anecdotally, we see a reasonable number proceeding to mediation without that deposition. 

For the mediation, without the need of persuading a final decision-maker, medical records or reports are often seen as sufficient. These may be less final or definitive. I have many times in mediation heard "I know that record/report says __________, but wait until I get that doctor under cross-examination. There is no way that opinion will stand up." The deposition and cross-examination is seen as a cost that can be foregone until ADR fails, and then undertaken as a "must" if the case proceeds to trial. 

The mediation/trial comparison is somewhat like cards. At trial, all the cards in someone's hand have to be put on the table. The cards will be compared to the cards held by other players. The facts and figures become revealed and all are eventually known. At mediation, some cards may be shown, and others perhaps only alluded to. There is some level of conjecture about how things will come out in the end and so there is room for doubt, discussion and negotiation. It is these mutual feelings, interpretations, and frankly doubts that drive people to little compromises. And, if the parties make enough little individual compromises, viola resolution! 

Back to the NCSC study; the respondents opined that two-thirds believe that the poor receive unequal justice, while significant (percentages in parenthesis) number believe unequal justice is afforded by courts for African Americans (51%), divorced fathers (46%) and Hispanics (44%). These perceptions have to be considered in light of the expressions by people recently involved with court systems. Among these recently involved, 70% were "satisfied with the fairness of the process in . . .dealings with the court system." So, there are broad perceptions of inequality, but a great majority of those with recent involvement find the process fair.

This incongruity may be because those who did not have "recent involvement" may be forming opinions that are based on pop-culture, television, short anecdotal news reports, or second-hand stories of friends, or friends of friends, or worse. This second-hand perception concept was illustrated in the 1986 classic Ferris Beuler's Day Off. As a teacher is attempting to ascertain why Ferris is absent, classmate Simone explains "my best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going out with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious." Perceptions may be based upon hearsay upon hearsay upon hearsay.

We all know the power of rumors. A poignant lyric from REO Speedwagon in their 1981 hit Take it on the Run also illustrates this. There the person "heard it from a friend who heard it from a friend who heard it from another you been messing around." But, they point out that "talk is cheap when the story is good" and the "tales grow taller on down the line." Perhaps the general public is picking up their perceptions of the legal system from a small sample of outcomes that are less than stellar? Perhaps those become "horror stories" that spread. Everyone loves a good horror story. Perhaps the success stories of the system lack the energy to spread "from a friend" to a friend. Perhaps those success stories just remain with the first-hand parties, those in the 70%?

Overall though, the NCSC suggests that state court systems need to recognize the perceptions, regardless of cause, and consider changes in process and procedure. A resounding 60% of respondents believe that courts should "do a better job of adopting new technologies to break down barriers between the public and the courts."

The six page summary is here.

A presentation with full results is here.

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